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ConCourt judgement underlines need for legal framework in Muslim marriages

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By Yaseen Kippie

While Muslim women in polygamous marriages are now able to inherit from their deceased spouse with the amendment of the Wills Act, Shehaam Samaai, an attorney and director at the Women’s Legal Centre,  says women’s vulnerabilities persist due to the lack of a legal framework under the South African constitution to protect their rights after divorce.

The case involving the second wife of Osman Harneker, filed at the Western Cape High Court by executor of the estate Fareed Moosa, sparked the process which was eventually heard at the Constitutional Court of South Africa last year and passed last week.

In 2014, the deeds office did not want to register a property left behind by Osman in the name of the second spouse, Fareda Harneker, because her marriage was not recognized under South African law, unlike Osman’s first wife, Amina, which he married under South African law. Fareda is now able to inherit a house left by her late husband for both her and Amina. They had both been in a polygamous marriage with him for fifty years.

In retrospect, the case has opened a plethora of similar cases since 1994. But Shehaam Samaai says this case was exceptional in that the plaintiffs were able to pay the legal costs, and their children had repudiated their share in favour of their mothers.

“It was costly to take on this case. There was only one house in the estate. If this was any other person, that house would have to be sold to cover the costs of lawyers.”

Furthermore, Samaai feels this case is part of a piece meal approach to the rights of women in Muslim marriages.

“Every time a piece of legislature which does not conform with Islamic law or the rights of women in Muslim Marriages, a costly court case needs to be filed.”

Samaai says whether it’s the Muslim Marriages Bill or any other form of legislation, or the development of the common law, the imperative to protect the rights of Muslim women and to recognise the vulnerabilities of them exists. She also pointed out that it is not only about Muslim women, but the recognition of other religious marriages, including Hindu and Jewish marriages.

This was in line with comments made by the Constitution Court that the Wills Act had previously been an “infringement of the dignity” of women. Samaai says the discrimination against women has been multiple, as the majority of women are Black Muslim women. All three are discriminated against.

The Muslim Marriages Bill was put forward to promote the recognition and rights of Muslim Marriages under South African Law.  But the Bill received resistance from within the Muslim community of South Africa. Some feel it does not reflect the tenets of Islamic Law. Others feel it is the product of a feminist agenda disguised as Muslim-friendly.

But Samaai believes it is disingenuous to politicise the Bill as feminist, while ignoring the fact that Muslim women are discriminated against after the dissolution of their marriages due to the lack of recognition of Muslim marriages in the South African constitution.

She says they have no rights to inherit property or any contribution they had made during their marriage. Samaai says that even when women’s names are on the title deed of the property, it is not recognised in the courts. “The challenge remains for them to go to court to ensure their rights are vindicated and to access what is due to them.”

Samaai says there should be a fund for these women to allow them to access lawyers to help their case.


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